Is Payment Made For Re-Use Or Not?

In my reports in this newsletter on the case of Tasini v. The New York Times, I’ve stated that in my opinion the outcome of this case will determine whether a publisher can re-use photos (or text) for electronic use (digital delivery) without paying an extra fee. Re-use fees, of course, have historically been the norm in the stock photo industry. Along came the Internet, and somehow, many publishers assumed that they didn’t have to pay additional fees when they used a photo (from a previous one-time usage purchase or previous freelance assignment) on their website, in online databases, on CD-ROMs, etc.

TO THE SUPREME COURT

The original trial court judgment of the Tasini case held that electronic publication of a freelancer’s work was a permissible “revision.” A three-judge panel of the Court of Appeals unanimously overturned that ruling in September 1999, and held that The Times and other publishers (Newsday, Time Incorporated, and Lexis-Nexis) were infringing freelancers’ copyrights by posting writing and photos on-line without permission from freelancers. The Appeals Court also refused to re-hear a counter appeal by The New York Times et al. The publishers then asked (and got) the Supreme Court to hear the case. As yet, no date has been set for the hearing of the appeal.

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THE COPYRIGHT LAW IS ON THE SIDE OF THE PHOTOGRAPHER

The Copyright Law (Title 17 of the USC [United States Code], Sections 201-205) allows the creator of a work (photo, writing, painting, song, etc.) to control and license that work for economic gain. All rights belong to the original creator, unless the creator has signed a written agreement ceding a particular right or rights. In other words, a client can’t contract with a photographer to use a photo (or series of photos) for the purpose of publishing them in a magazine or book, for one-time publishing rights, and then turn around and re-use those same pictures on their website without offering the photographer additional compensation. This applies to photos licensed to the client for one-time usage in the past, as well as future photos.

Note: The law is always open to interpretation. You can expect to hear different shadings of the above, by the attorneys for the publishers, in this case.

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BIG DAMAGES

Either side stands to lose big on this case, if they’re the ones the Court rules against. Freelancers would lose not only on payments for photos unlawfully re-used in past years, but also in future re-uses. Publishers could conceivably be held liable for past and current copyright infringement.

Most photographer and writer organizations have expressed confidence that they will see a positive outcome for this case. They predict that freelancers, who will now have been thwarted in their attempts to instate their re-use rights for electronically published photos, will prevail. -RE

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July 2001

Ed. Note: As it turns out, photographers and writers prevailed.

The question was, “Do print and electronic publishers violate the copyrights of freelance authors (and photographers) when they include the freelancers’ already-published articles in computer databases without the author’s permission?

Yes. In a 7-2 opinion delivered by Justice Ruth Bader Ginsburg, the Court held that section 201(c) does not authorize the copying at issue. “The publishers are not sheltered by [section 201(c)], we conclude, because the databases reproduce and distribute articles standing alone and not in context, not ‘as part of that particular collective work’ to which the author contributed, ‘as part of…any revision’ thereof, or ‘as part of…any later collective work in the same series.’ Both the print publishers and the electronic publishers, we rule, have infringed the copyrights of the freelance authors,” wrote Justice Ginsburg.

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Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: [email protected]